LOCATION:Spokane County Superior Court
DOCKET NO.: 196
DECIDED BY: Warren Court (1967-1969)
CITATION: 390 US 17 (1968)
ARGUED: Dec 12, 1967 / Dec 13, 1967
DECIDED: Jan 16, 1968
Audio Transcription for Oral Argument – December 12, 1967 in Schneider v. Smith
Number 196, Herbert Schneider versus Willard J. Smith, Commandant of the United States Coast Guard.
Mr. Chief Justice —
I’m Sorry, Mr. Chief Justice and may it please the Court.
This case arises as a consequence of an order of this Court which postponed further consideration of the question of probable jurisdiction to a hearing of the case in the merits.
Under this Court’s orders and its rules counsel should address themselves with the outside — outset of their brief and oral argument to the question of the jurisdiction.
This is in appeal from the final judgment of the three-judge Court, pursuant to 28 U.S.C. 2282.
The complaint of the appellant asked the Court to declaratory an injunctive relief when constitutional grounds from the application of 50 U.S.C. 191, which is commonly known as the “Magnuson Act”.
It was alleged that the Act was unconstitutional and it was vague.
And it was contended below that there was unconstitutional delegation to the executive of legislative power.
The court below accepted jurisdiction.
Now this was a proper case for the invocation of the three-judge court and thus, for this appeal.
The Government concedes in their brief that this Court does have jurisdiction of the appeal.
And both the Solicitor General and the appellant state that these questions are substantial and that Zemel versus Rusk is authoritative and is positive of this question.
Zemel further makes it clear as thus, the issue that jurisdiction haven’t been established.
This Court will consider the statutory and regulatory schemes as a whole.
Now, the Magnuson Act under which this case arises was introduced into Congress in July of 1950, less than one month after the Korean War began.
Now, this was all of us on sure recall, a time of great anxiety of this nation.
The Act has cast the House of Representatives with no debate and the Senate with virtually none.
It purported to a man the World War I statute regulating the anchorage and movement of vessels during national emergency by permitting the President to exercise authority other than by the proclamation of National Emergency which he was permitted to do.
And secondly, by extending the authority of the President to: ports, harbors, and waterfront facilities.
The President by executive order shortly thereafter found that “The security of the United States is endangered by reason of subversive activity”, and prescribed regulations that delegated his authority to the Coast Guard.
A Commandant of the Coast Guard by such regulations required that as a precondition of maritime employment.
The maritime workers must be issued a specially validated emergency endorsement.
No person shall be issued such a document which is required for an employment nor may he be employed unless “That Commandant is satisfied that the character and habit of life of such person are such to authorize the belief that his employment would not be inimicable to the security of the United States.”
Now these regulations pursuant to the executive order, where the genesis of what we know as the Maritime Security Screening Program.
This program is the only Government to one private employment that blankets an entire industry.
It’s the only program that covers private employment all together except for the defense contractor security program where the employer, is of course, the contractor of the federal government dealing with classified information.
Although, originally proposed as an emergency measure by the Attorney General who requested that the authority that was given should expire on a specific date.
By 1956, well over 800,000 men have been screened under this program and more than 3,700 of them have been denied employment or removed from employment.
The program is wholly administered by the Coast Guard with complete, unchecked discretion in a Commandant of the Coast Guard.
It seeks the lead out subversives form among all maritime workers, who presently number probably in excess of 150,000.
And that includes cooks on banana boats, checkers on the docks, sweepers on the Great Lakes, the rivers of — the navigable rivers of this country.
It includes people doing every conceivable kind of job in the maritime industry in vessel above 100 ton and of course the dock workers.
The way the program works, it seems to me, is well perceived by the experiences of the appellant here.
By the information it’s already found in the briefs and the joined appendix.
Mr. Schneider failed, as a young man, during the 1940s and was a qualified — and qualified as a marine engineer.
When his children arrived he quit sailing.
In 1964 his children being substantially grown, he decided to go back to the sea and he applied.
Now applying meant going down to the Coast Guard and filling out certain applications.
Among other things, those applications included an original questionnaire which is exhibit A 2 in the joined appendix on page 27.
And the original questionnaire asks a number of basic questions like, Have you been arrested for or convicted of the offenses of treasons and sedition, espionage or sabotaging?
He denied that denied also that he have ever been involved in the conspiracy.
He was then asked whether he have ever been involved in any capacity by a foreign government or by any person on behalf of the foreign government.
He answered that, “No”.
Last night, while preparing this argument for this Court, I reread this, and to my horror even though this is off of the record but I think it notes something.
I realized that Mr. Schneider by innocent inadvertence may well have purged himself because for a year, he and his wife and his children lived in a Cabot in Israel.
Now for the wise of me, I don’t know whether the answer to this question if one works for a Cabot’s in Israel and lives in a Cabot, it’s really yes or no.
That’s question number 3.
Mr. Schneider has no idea I’m making these concessions on his behalf.
But I think it’s significant that the character and quality of these questions are such a character that such an inadvertent on Mr. Schneider’s part such a lack of knowledge put indeed have occurred.
He was then asked whether he advocated or had ever advocated the overthrow or alteration of the Government of the United States by for surveillance or by unconstitutional means which he denied.
He then had submitted to him what is commonly known as the Attorney General’s list and which is listed in detail in this particular — in the joined appendix commencing on page 27.
And he was asked whether he had ever submitted material for publication which — in which he gave a negative response.
And whether he had ever been a member of or affiliated with any way any of these organizations.
Now as the record subsequent — as it subsequently appears in the record in his counsel subsequently pointed out by way, Mr. Schneider had or idealistic reason that a casual member of the Communist Party during his youth.
He had drifted away from the Communist Party in the late 1940s.
He had also and these were problems that he faced when he have been assessed that he’d reading this list.
He had also for example had certain contacts because he was interested in politics with some problems in the defense of a well known west coast labor leader, in which he left unmentioned.
He had gone to a labor school as an active member of a trade union.
He had been involved in democratic politics in the State of Washington which during given periods of involved some relationships with some of the organizations listed here.
He found it extraordinarily difficult to answer these questions about conduct that is 20 to 25 years older.
He found the questions vague and uncertain.
He did not know what to do.
And as a consequence, he answered the questions in the fashion set forth on page 33 that he had been a member of many political and social organizations including several names in the list.
He couldn’t remember the names of most of it.
He couldn’t specific about any but in no event have he been a member of anything for some substantial period of time.
This answer of course was given under pain and penalty of perjury.
And it’s also noted on page 33 of the joined appendix, it appears that the intelligence division of the Coast Guard received this questionnaire, just a few weeks after it was answered, and proceeded to check it by using the facilities of the FBI and the other Government investigated bodies that are available.
There were no answers, none whatsoever.
Mr. Schneider went to the Coast Guard and said, “What’s going on?”
“Why am I not receiving my special validation?”
They wrote several letters to which there was no response.
In mid March he retained counsel.
And the counsel then by virtual of a number of letters which again are set fort commencing on page 17, approached the Coast Guard by mail and said — asked what was happening and why Mr. Schneider did not receive the special validation.
The Coast Guard responded saying that he’s reluctant to furnish names and dates of membership had delayed their investigation now some five months.
And however, they anticipated that action will be taken in the near future which presume to me that he would receive his special validation.
Nonetheless, the special validation was not received.
And on March 25th, Mr. Schneider received instead a group of interrogatories from the Government when she was also compelled to answer under pain and penalty of perjury are those interrogatory being contained on page 35 of the joined appendix.
He is of course involved asks questions to such as listing the name of the political and social organizations to which he belong, the location, the dates of his membership, his reasons for discontinuing his membership, his present attitude 20 years later for the principles and objectives of such an organization.
He was asked whether he was now or had ever been a member or affiliated in any way with the Communist Party?
Whether you’d ever subscribed to a newspaper the people’s world?
Whether he had ever engaged in any activities on behalf of that newspaper?
And then he was asked to write an essay on his present attitude towards the Communist Party, and the rights to further a philosophical essay, and his present attitude towards the principles and objectives of communism, and towards the form of the government in the United States.
These sort of do it yourself worthy I suppose.
In any event, all of these were under pain and penalty of perjury, to answer these questions searching his mind.
Well at this point, Mr. Schneider obviously had a dilemma.
It was a dilemma of his or it was a dilemma of concerns.
Mr. Schneider wanted to shift but he valued his constitutional right.
Counsel didn’t wish to subject if the hazards of self-incrimination or for perjury indictment.
So Mr. Schneider faced the consequence of answering the questions thus, subjecting himself to the hazards of such an indictment or if you chose not to answer the questions the hazard of never been able to proceed in its chosen occupation.
When that third course which course to do search some administrator of channels set fort in the regulations.
That third course the so-called administrative channels and I’m appreciative of the facts that you didn’t use the word remedies.
The administrative channels where to answer the questions.
That is the only administrative channel under the regulations that are available.
And indeed when the District Court of this Circuit, the Circuit Court of this channel in Graham versus Richmond had earlier said that a person need not answer such questions.
The Coast Guard had immediately proceeded to create additional and rather difficult channel by saying that anybody who did not answer the question would not be certified.
So there was no third alternative, sir.
Except to against his conscience answer the questions with the hazards implicit in that or alternatively never secure employment.
When the appellee and you are in conflict on that term, am I correct?
I think not.
I don’t know of any of the way to read the regulations.
But doesn’t the appellee argued that there is another way to read the regulations and if there is, and then the administrative remedy (Voice Overlap) —
Not as far as I know sir.
I never heard such an argument until this — until Your Honor suggested that it might exist.
But I was inquiring of it.
No, I think not sir.
In any event, when further letters were to no avail I think determined to bring this action.
Now all of this is in face of the fact that the Government neither contested nor produced evidence to contradict the fact that Mr. Schneider has always been and is loyal to the United States.
That he has never come in any act of sabotage or espionage or any act inimical to the security of the United States.
That he has not been active in any organization on the Attorney General’s list for many years.
It appears to me that the only thing one can safely produced from this failure to grant him special certification was a punitive effort on the part of the Coast Guard, to deprive him of his livelihood because it is an assertion of his constitutional rights.
Nothing else can be perceived in the record or from the behavior or the exchange of correspondents.
Now the issue post here, the central issue post is that expressed by this court in by question, whether the right to employment can be conditioned upon the surrender of the constitutional rights which could not be a bridge by directing Government action.
The Court of course, this Court sites many cases and answers the question negatively.
Yet, this has been and remains the central contention of the Government has been right from the beginning.
They justify their contention that the question should be answered affirmatively.
It gives me great comfort.
I even contemplated standing up and saying, Robel and sitting down.
It seems to me if decisive of this case and I was about to add that I thought that Robel certainly went directly to that point and answered it besides the claim and I hope to find it.
But in addition to that of course, the Government trying to answer the other way makes two points.
And there are only two that I never been able to locate in their briefs and arguments.
First, they make the argument of what I would be called a missed describe exhaustion of remedy argument.
And secondly, they appealed with the necessities of National Defense just as the Court’s decision in Robel yesterday.
I thought you said there wasn’t many?
I thought you said there was any dispute on that court?
There is no dispute that the remedy unless I misunderstood your question, Mr. Justice Fortas.
Well, the Government does make the argument that this is a premature because Mr. Schneider has not exhausted in this administrative remedy?
It’s the key argument but I had understood your question to me whether he could exhaust his remedies other than by answering the question interrogatory.
Does the Government say that — if the Government concede that he has got to answer the interrogatory —
–before he can pursue any other remedies?
The Government — the analogy in the sense to the criminal procedure, the government takes the position, it seems to me like the prosecutor might to the criminal first in charge with the crime.
You can have your trial if you submit to incarceration and persistent questioning without the presence of the counsel.
Then you’re entitled for a trial.
This is what the Government says.
It says, “Violate your constitutional rights by answering all these interrogatories placing yourself on these hazardous positions and violating your conscientious position with respect to the First Amendment.
And then, we will rule as to whether or not you can be especially validated?
Now, I suggest sir that that’s not administrative remedy.
That’s a submission it to a Government in position.
So, it seems to me that Robel answered both the question as we post earlier and the appeal to the necessities of national defense when this Court said, that such an appeal unrelated to our basic constitutional principles cannot be used as a justification for their destruction.
Roble or Robel how you call it, get involved of the criminal prosecutions or anybody who (A), as a member of a semi-fashion group and (B) had employment in a defense facility.
In this case, I’m now reading from the letter that you yourself oath on page 23 of the joined appendix, you said that you advised your client that it is possible for him to answer the interrogatories, you are saying.
And that without any doubt, we would then receive a certification which he both desired and needs so that he may earn a living in his chosen field.
There’s no such absolute and flexible impediment of this man’s employment unless you are wrong in the professional advice that you represented him.
We always hoped that our enemy will write a book and that — and lawyers I suppose are always distressed when they see letters that they wrote for a few days after a client came in the office.
I think they were hazards and very real ones.
They were not the kinds of absolute impediments that contained, of course, in the criminal statute involved in Robel.
Did you advise him that he could answer the interrogatories and that if he did so, he get his job.
Get what —
What I was seeking to say inartistically and rather badly was that it is so obvious that this man cannot constitute a security risk to anybody and that he is obviously such an upstanding, honest, decent guy that even the Coast Guard has got to understand this.
This is what I was really saying.
But on the other hand, this Court and I believe Your Honor in the opinion of this Court warned that one cannot always rely upon what the prosecutor might do.
And I was simultaneously worried, after all the Robel indictment occurred in Seattle.
And the crime in Seattle is not always everything we would want it to be and I wanted to —
That’s true about the time and everything —
I think that’s true, right.
But I wanted to both be safe and yet –really, what I was trying to say to the Coast Guard is, “Look for heaven’s sake, don’t make this man go through the answering of these questions that were obnoxious.”
I don’t put him in a position of jeopardy.
It is planned.
All you have to do, as I laid a point out in one of the letters of — the most minimal investigation of Herbert Schneider.
Would it reveal that — that this man was a clearly good — a man of good First Amendment character.
But the horror of the situation of course, this shouldn’t be put through in the first instance and the problem of counsel is that Mr. Schneider wanted to go to see.
And at the same time, he wanted to protect rights that he got with pressures and that his principle of it.
This was the dilemma.
And really the basic principles opposed by this case it seems to me, a very fundamental kind of principle.
First of all, it seems to me that we have post in this case the whole concept of the privacy of the individual.
This would be claim of Government necessity which is really what the Bill of Rights I taken it all about.
And an implicit in this, there are notions of the non-acceptance of assumptions or presumptions or inferences of guilt based upon people’s beliefs and association.
We were in this in the long terms of concepts and presumption of innocence and burdens of proof.
And the recognition that I hope and believe that Courts have that people had the capacity for a change.
Implicit in this is the non-assumption that individuals are tainted by the allegedly bad character of their associational relationships.
The assertion it seems to me of vital — of the vital public necessity, not just Schneider’s necessity.
But the public’s necessity that individuals be non-intimidated in areas of beliefs, thoughts, speech, and association.
Really, so the democratic political process can work, the assertion of the essential of the human personality, the right of privacy in a sense which includes the right to remain silent laws to speak, the right to be free of the indignity of inquisitorial kinds of inquiries.
Also it seems implicit in this case, is the necessity and the maintenance for freedom of a rule of law.
Now, what the Solicitor General of the United States in his form of capacity of Dean of my law school, had to say in a very good book called the Fifth Amendment, where he referred to the Second Chapter, “To the Law of the Land” this whole concept of due process that underlies these.
The notion that we cannot maintain our democracy , if we’re outside the laws the justice of this Court in his former capacity of the distinguished constitutional lawyer.
I pointed out an Article by that name in the Atlantic monthly in August 1953.
An article which could be read profitably today because it describes Mr. Justice Fortas’ Article outside the law describes the very rights.
That is inherent in the maritime screen program.
So at the minimum it seems to me that we have the right to expect from our Government, my Government, your Government that it will take no steps to compel a man to place himself in jeopardy.
That no one may be subjected to the possibility of the punishment by laws of employment unless probable cause is first found for an assertion of disloyalty or lack of security.
So that he should be confronted in detail and with specificity as to any charges against him.
They be permitted to confront his accuser that he be afforded that opportunity for consulate cross examine such accuse him.
And to present evidence in his behalf that he be judged only by what’s on the record and by evidence which he has the opportunity to meet that his accuser his judge, his jury not be the same or responsible with the same law with authority, and that the process provides an independent judicial review.
None of these things are present in the Coast Guard regulations as they exist.